Breaking the law while overseas can still get you into trouble, even if you don’t know what the local law is!
Just like in Australia, ignorance of the law is generally not an excuse.
During a holiday in Thailand, an Australian mother of four found out first-hand that the consequences of breaking a local law can be harsh.
Some friends had put a bar mat into her handbag as part of an alcohol-induced prank, and Annice Smoel was apprehended when she tried to leave the bar by undercover Thai police.
Although her friends later confessed to the police, Smoel spent two nights in a prison cell and face a whopping five years in a Thai prison.
In exchange for her freedom, she pleaded guilty to theft and received the equivalent of a suspended prison sentence and a fine.
But that was not the only consequence of the prank – when Smoel later applied for a US visa to take her four daughters to Disneyland, she was refused because of the criminal record she received.
And she might not be allowed entry into the US for up to seven years.
From the ignorant tourist right up to the international drug mastermind, committing a crime in another country doesn’t mean you can escape any kind of penalty just because it happened overseas.
If you commit an offence overseas, three things could happen:
- You could be prosecuted under the law of the foreign country;
- If you have left that country, you could be extradited back to the country for prosecution; or
- You could be prosecuted back here in Australia
You could be prosecuted under the law of the foreign country
While you are overseas, you will generally be subject to the laws of the country you are in and, as already stated, whether you have broken a local law inadvertently or have committed a serious offence, you may be prosecuted in that country and under their legal system.
It is therefore entirely possible for Australians to be convicted overseas: Annice Smoel and well-known figure Shappelle Corby are two people who can attest to that.
Foreign legal systems may not include the same rights and protections that defendants are afforded in the Australian criminal justice system.
Corruption and inadequate human rights protection could also be problematic in some countries.
And it is not unheard of for tourists to be targeted by corrupt police.
Even worse, if you do end up charged with an offence, you might find yourself alone with little means to communicate your side of the story.
The Australian government is limited on the amount of help that they can provide you with.
Some of the ways that the Australian Consular Services can help you are:
- Provide lists of local lawyers;
- Visit or contact you if you are arrested;
- Inform your family of your arrest (if you give your consent to this); and
- Seek to ensure you are not mistreated while you are under arrest
But they will not provide you with legal advice, post bail, pay your legal expenses or get you out of prison.
You will not receive any special treatment simply because you are an Australian citizen, but will be dealt with according to the local rules.
This means that before travelling overseas it is best to research your destination and be a little familiar with the local laws.
You could be extradited back to the country and prosecuted there
Even if you make it back to Australia after committing a serious crime (or being charged with one), you are not necessarily off the hook.
It is possible to be extradited back to the country where the alleged offence was committed and face trial.
There are a number of countries with whom Australia has extradition treaties, which means that if a person is found eligible by a court, and then surrendered by the Attorney-
General, they may be sent back to that country to face trial.
We posted a blog some time ago with the list of countries with whom Australia shares extradition arrangements.
A person who can be extradited is one for whom there are warrants out in force in another country.
But just because a request has been made, it does not mean that the request will necessarily be granted, and the person automatically handed over.
There are several reasons why the Australian government may refuse to extradite someone.
One reason for this is if the alleged offence is not recognised as an offence under Australian law.
If the offences are political or military in nature, extradition may be refused, as well as if you have already been acquitted, punished or pardoned for the same offence.
If extradition is sought in order to punish you because of factors such as your race, gender, religion, sexual orientation, nationality or political opinion, it may also be refused on that basis.
The same goes for people who are likely to face substantial prejudice because of those factors.
You could be prosecuted back here in Australia
It is possible that, instead of being extradited, you may be prosecuted in Australia instead, if the conduct in question would have constituted an offence under Australian law.
There are a whole host of offences contained in legislation such as the Criminal Code Act 1995 (Cth) that apply even if you are overseas.
One example is the law against child sex tourism.
This is a crime whether or not it is treated as a crime in the country where the offence was committed.
Thirty people have been prosecuted in Australia since the laws against child sex tourism were introduced a decade ago.
Having said that, child sex offences that allegedly happened overseas or a long time ago can be very hard to prove.
Engaging in military operations overseas is another crime that can be prosecuted in Australia.
That conduct can be prosecuted under existing anti-terrorism legislation.
One of the more recent, and controversial, anti-terrorism laws that is currently being debated seeks to introduce ‘no go’ zones.
Travelling to one of those areas will be an offence under Australian law – unless you can prove that you travelled solely for a legitimate purpose such as to provide humanitarian aid, visit a family member or for journalistic purposes.
This means that those returning from an overseas trip to a prohibited area could face prison time unless they can positively prove that the purpose of their trip was for legitimate purposes.
If you are just on holidays and you are accused of breaking the law in a foreign country, you can end up facing serious consequences, either under the local laws or back in Australia.
The possibility of spending time in local prisons, a criminal record that could affect future travel, or prosecution in an Australian court are all good reasons to take precautions when enjoying your time away.